The introduction of anti-SLAPP legislation has emerged on the agenda of various media editorials and subsequently also in Parliament through my colleague Jason Azzopardi, who has been advocating for it. His proposal refers to slander and libel suits instituted overseas, rendering the resulting judgments non-enforceable in Malta. This is not the optimum solution to a very complex issue.
It must be emphasised that such legislation would give vent to serious legal repercussions from a private international law perspective.
Most countries have been struggling with these issues for some time and have not come up with a concrete solution even in the face of an increase in so-called libel tourism. As things stand today, direct anti-SLAPP legislation would run counter to European law.
In fact, the EU already caters for a legal framework applicable to all States for how reciprocal judgments in the EU are to be enforced in Member States.
In this regard, the regulation of law in tort has long been on the agenda of the EU.
The Rome II Regulation on the law applicable to non-contractual obligations was enacted on July 2007 and came into force in January 2009. Unfortunately, however, defamation was again excluded from the scope. Therefore, European Member States till now have no common position. Social media platforms have no traditional territorial and jurisdictional constraints and are global in nature.
This causes legal challenges with regards to litigation concerning slander. The lack of clarity has allowed claimants to often opt to choose to bring forward proceedings in a particular jurisdiction because of perceived advantages, thereby leading to forum shopping.
Most countries seem to be addressing this phenomenon differently. This notwithstanding, however, that within the EU and Western democracies, few and far between are those jurisdictions which have enacted or are contemplating enacting a direct anti-SLAPP law per se.
Such legislation could not only be regarded as running counter traditional principles of private international law, but also could be perceived as being downright anti-constitutional, since such legislation can be construed as denying citizens access to the courts.
The general trend is therefore aimed at minimising or, at best, circumventing the possibility of instituting lawsuits extra-territorially for malicious purposes.
There already exists legislation which deters the attainment of foreign judgments in a vexatious manner
In the UK, for example, the Defamation Act of 2013 states that for a defamation suit to be brought forward by a foreign interested party, the court must be satisfied that England and Wales are clearly the most appropriate place to bring forward the action, thereby minimising capriciousness. Furthermore, according to British case law dealing with defamation online, we see that the location of a tort emanating from defamation is considered to be the place where the material is received, read and downloaded. It must be pointed out, however, that this piece of legislation does not include judgments before the courts of Member States, since the EU has its own established modus operandi in this regard.
Furthermore, the European Court of Justice in the e-Date advertising case determined that a claimant who is defamed online could also bring proceedings for all the damage to their reputation in the courts of the place where the claimant has his centre of interest.
In the US, the courts take a more restrictive approach, since freedom of speech under the First Amendment is given priority above other rights. Different States are treating this issue independently. Illinois has enacted a law with draconian international ramifications to protect citizens from vexatious lawsuits of this genre. It allows countersuits for damages if it is proved that the plaintiff’s sole aim was to suppress First Amendment Rights.
In Malta, therefore, the issue cannot be simply resolved by the mere enactment of an Anti-SLAPP legislation. On the other hand, I fully concur with the arguments raised that indiscriminate selection of foreign jurisdictions for the main scope of gagging the free press in Malta is unacceptable.
However, it must be emphasised that in our legal framework, there already exists legislation which deters to a certain degree the attainment of foreign judgments in a vexatious manner. Foreign judgments dealing with whatever genre of matter are not automatically enforceable here.
Our appeals court is endowed with the authority to vet such judgments and decide whether they should be enforceable in our jurisdiction or otherwise. It examines, for example, if the plaintiff is domiciled in Malta or a resident. If so, judgments are enforceable only in circumstances where the plaintiff has contested the lawsuit.
At this stage, I dare say it seems more opportune to extend the discussion to take into account a broader context, or we might suffer a backlash from a private international law perspective. It would be wise to examine the subject further and wait to see how the problem is evolving in other countries, especially in the EU.
José Herrera is Minister for the Environment.